Naparus & Frankham (No. 2)
[2020] FamCAFC 238
•25 September 2020
FAMILY COURT OF AUSTRALIA
| NAPARUS & FRANKHAM (NO. 2) | [2020] FamCAFC 238 |
| FAMILY LAW – APPEAL – Interim Parenting – Appeals against interim parenting orders for the return of the child from Western Australia to Victoria – Recovery order – Execution of recovery order – Stay – Recusal – Apprehended bias – Prejudgment – Right of appeal – Where the appeals are futile – Where there is no practical utility in the challenges to the interim orders given the proximity of the final hearing – Appeals dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) s 94AAA |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Frankham & Naparus (No. 3) [2020] FCCA 1746 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Naparus & Frankham [2018] FamCAFC 190 Naparus & Frankham (No. 4) [2020] FCCA 1830 Naparus & Frankham (No. 6) [2020] FCCA 2063 Reece & Reece [2011] FamCAFC 24 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 |
| APPELLANT: | Ms Naparus |
| RESPONDENT: | Mr Frankham |
| INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates Pty Ltd |
| FILE NUMBER: | MLC | 1462 | of | 2016 |
| APPEAL NUMBERS: | SOA SOA SOA SOA SOA | 50 53 56 59 63 | of of of of of | 2020 2020 2020 2020 2020 |
| DATE DELIVERED: | 25 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | 16 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 9 June 2020; 2 July 2020; 9 July 2020; 16 July 2020; and 21 July 2020 |
| LOWER COURT MNC: | [2020] FCCA 1746; [2020] FCCA 1830; [2020] FCCA 1892; and [2020] FCCA 2063 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Kanarev |
| SOLICITOR FOR THE RESPONDENT: | Nick Graham Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates Pty Ltd |
Orders made on 16 September 2020
The appeal numbers SOA 50 of 2020, SOA 53 of 2020, SOA 56 of 2020, SOA 59 of 2020 and SOA 63 of 2020 be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naparus & Frankham (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 50 of 2020; SOA 53 of 2020; SOA 56 of 2020; SOA 59 of 2020 & SOA 63 of 2020
File Number: MLC 1462 of 2016
| Ms Naparus |
Appellant
And
| Mr Frankham |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Strickland & Ainslie-Wallace JJ
Introduction
Ms Naparus (“the mother”) and Mr Frankham (“the father”) have been litigating for years about their child X, who was born in 2015.
Five appeals are brought by the mother in challenge to various interim parenting and other associated orders made by a judge of the Federal Circuit Court of Australia.
On 16 September 2020 the appeals were heard, and at the conclusion of the argument all appeals were dismissed. We indicated that reasons for that decision would be published shortly. These are the reasons.
It is helpful in understanding the issues raised in the appeals to set out some of the background of the parties and the various orders that have been made in relation to the child from time to time. These matters, apparently uncontentious, are taken from the primary judge’s reasons for judgment delivered on 9 June 2020 (Frankham & Naparus (No. 3) [2020] FCCA 1746 (“Frankham & Naparus (No. 3)”)).
Background
On 30 April 2018 a judge of the Federal Circuit Court of Australia made interim parenting orders which provided that the child live with the mother and spend time with the father, building in July 2018 to each alternate Saturday and Sunday from 11.00 am until 5.00 pm on each day.
It is relevant to understand that at this time the mother and the father were both living in Victoria.
The final hearing of the parenting applications took place in October 2018 and on 28 February 2019 orders were made that the child live with the mother provided that the mother and child remained living in Victoria. Orders were also made for the child to spend time with the father gradually building up to alternate weekends. The judge dismissed the mother’s application that she be permitted to relocate the child’s place of residence from Victoria to Western Australia. The judge ordered that should the mother leave Victoria, the child would, in that event, move to live with the father.
The mother appealed those orders, and on 18 February 2020 the orders were set aside and the matter was remitted to the Federal Circuit Court of Australia to be heard by another judge of that Court. No orders were made by the Full Court on setting aside the challenged orders, and, thus the interim parenting orders made in April 2018 became the operative orders, pending the rehearing. That rehearing was subsequently set to commence on 9 June 2020.
When the COVID-19 pandemic arose, on 20 March 2020, the father, through his solicitors indicated to the mother that he would not be taking up the ordered time with the child due to the “COVID-19 situation”.[1] The mother’s evidence was that, in that event, and she having significant and important family support in Western Australia, she and the child moved there. The mother’s evidence was that she intended to return to Victoria once the restrictions had eased, and it is clear that she anticipated attending the rehearing of the parenting issues in June 2020.[2]
[1] Mother’s affidavit filed 7 June 2020, paragraph 31.
[2] Mother’s affidavit filed 7 June 2020, paragraph 37; Transcript 2 July 2020, p.3 lines 1–15.
The mother and the child left Victoria for Western Australia on 5 April 2020. The mother told the father on the same day that she was leaving with the child to drive to Western Australia. According to her affidavit filed on 7 June 2020, the father sought some advice from the local police in Victoria but the police took no action.[3]
[3] Mother’s affidavit filed 7 June 2020, paragraph 36.
On 24 April 2020 the mother filed an Initiating Application in which she sought orders that she be permitted to remain living with the child in Western Australia and also sought to vary the then existing orders for time between the child and the father. Her affidavit in support was sworn on 18 March 2020, and that would have been obvious to the primary judge. The importance of that relates to his Honour’s remarks as to the intention of the mother, and confirms the accuracy of what she deposed to in paragraphs 9 and 10 of her affidavit filed in support of her application for his Honour’s disqualification. In any event, that application was left to be dealt with at the rehearing set to commence on 9 June 2020.
9 June 2020
On 9 June 2020 the remitted parenting applications came before the primary judge for hearing. However, the matter could not proceed to final hearing at that time because of a deficiency in the Family Report, crucial psychiatric assessments having only just been provided, the father having failed to file his trial affidavits, and the mother only having recently filed hers.[4] In any event, the final hearing of the matter was adjourned to 26 October 2020. His Honour ordered the preparation of an updated Family Report and ordered that the mother make the child available for the necessary interviews.
[4] Transcript 9 June 2020, p.7 lines 7–12.
His Honour noted that the mother and the child had moved to Western Australia and because of the COVID-19 pandemic, the Western Australian border was then closed and the child could not be returned to Victoria (Frankham & Naparus (No. 3) at [6]).
There remained before the primary judge the mother’s application filed on 24 April 2020 that she be permitted to remain with the child in Western Australia, and further that orders be made, in lieu of the then existing orders, that the father spend time with the child in Western Australia once per month in gradually increasing periods and that the mother would meet half of the father’s travel and accommodation expenses to give effect to those orders. Subsequently, before his Honour, the mother proposed that she would meet all of the costs of the required air travel.
The primary judge in Frankham & Naparus (No. 3) at [10] noted the mother’s affidavit in which she referred to a history of family violence and to the fact that orders had been made for her protection against the father. His Honour at [12] also noted the mother’s evidence that she had strong family ties in Western Australia and that she would receive support there.
Both the father and the Independent Children’s Lawyer opposed the orders sought by the mother and his Honour noted that the Family Report, then available, recommended that the mother return the child to where she had been earlier living (Frankham & Naparus (No. 3) at [23]).
The primary judge thus declined to make the orders sought by the mother, and his Honour’s orders expressly left the extant orders of 30 April 2018 in place, but subject to the then state border closures, and for that purpose ordered that within seven days of the removal of the travel restrictions between Victoria and Western Australia, the mother return the child to reside in City B. His Honour further ordered that the father’s time recommence with the child on the first Saturday within 14 days after the removal of the travel restrictions.
The mother appeals these orders by Notice of Appeal (SOA 50 of 2020) filed on 19 June 2020.
2 July 2020
The matter came back before the primary judge on 2 July 2020 on the mother’s application for a stay of the orders made on 9 June 2020, pending the hearing of the appeal that she had filed. Also before the Court was the father’s application for a recovery order to secure the child’s return to Victoria. The stay was refused. The father’s application was stood over for hearing to 9 July 2020 because of uncertainty around whether the state borders were open.
During argument on the mother’s application, his Honour said to the mother:[5]
HIS HONOUR: What do you say to the proposition that you disrupted the child’s living arrangements by unilaterally moving from Victoria to Western Australia?
[THE MOTHER]: I do say that. But that wasn’t the intention of disrupting the child spending time with the father because he, himself, was not spending time with the child. He declined to have face-to-face contact. So by me coming here [namely Western Australia], it was on an interim basis until the final hearing which was adjourned. So there was – you know, I was hoping that there was going to be some finality to the process on an interim…
[5] Transcript 2 July 2020, p.3 lines 7–15.
His Honour enquired of the mother whether she would comply with orders requiring her to return to Victoria if he was to make them. In answer, the mother said that she proposed to appeal his refusal to grant the stay. His Honour apparently took that response to indicate that she would not. The primary judge then invited the mother to make submissions on the father’s application for a recovery order.[6]
[6] Transcript 2 July 2020, p.8 line 46 to p.9 line 25.
The mother said that the travel restrictions closing the border of Western Australia had not been lifted and thus she was not in breach of the order made on 9 June 2020. She also submitted that her accommodation in Victoria was not “liveable” at the moment, it having been ransacked. The primary judge stopped the mother’s submissions telling her that they were “irrelevant”, she having been unsuccessful in her interim application.[7]
[7] Transcript 2 July 2020, p.9 lines 34–39.
When the primary judge explained to the mother that the recovery order would put the child in the care of the father, a matter of which it is clear the mother was not previously aware, and indeed would not be the case if the mother too returned to Victoria after the recovery order was executed, she submitted to the primary judge that there was a significant risk to the child of being abused in his care, and referred also to the then untested allegations of sexual abuse.[8]
[8] Transcript 2 July 2020, p.10 lines 1–4.
In his reasons for judgment of 2 July 2020 for refusing to order a stay of the orders made on 9 June 2020, his Honour, after adverting briefly to the history of the matter and the previous successful appeal to the Full Court, said in Naparus & Frankham (No. 4) [2020] FCCA 1830 (“Naparus & Frankham (No. 4)”):
4. That obviously and clearly left in force the most recent interim orders of 30 April 2018. It seems not disputed that on 5 April 2020 the mother unilaterally moved herself and [the child] to Western Australia and arguably only a day – if not a day, then only a matter of days – prior to state lockdown of borders due to the COVID-19 virus…
…
6. Significantly, on 24 April 2020, the mother then represented by solicitors, had filed an Application Initiating Proceedings but also seeking interim orders inter alia that she be permitted to remain in [Western Australia] with [the child]. That was clearly and unambiguously an interim application aimed at legitimising the unilateral relocation of [the child] and her prima facie breach of extant interim orders providing for time between [the child] and the father.
His Honour continued and considered the application for a stay, discussing the relevant legal framework and said:
16. … In making that comment I note the following: (1) [the mother] left Victoria apparently without the permission of the father and arguably did so during the COVID-19 virus and perhaps with the knowledge of, or reasonably to have expected that it would be probable of there being pending lockdowns of state borders. Secondly she acted prima facie in breach of interim parenting orders.
That of course overlooks what in fact happened in March 2020 with the father saying to the mother that he would not be seeing the child in accordance with the then current orders.
The mother appeals the primary judge’s refusal to stay the orders of 9 June 2020 by Notice of Appeal (SOA 53 of 2020) filed on 2 July 2020.
9 July 2020
On 9 July 2020 the primary judge, on the father’s application, made a recovery order in relation to the child in the father’s favour. While noting that the orders of 30 April 2018 remained extant, his Honour varied them to the effect that the father’s time with the child be in City B. His Honour further ordered that the recovery order lie for seven days pending advice that the mother had returned the child to Victoria. The making of a recovery order was supported by the Independent Children’s Lawyer.
It appears that at this time, there were no travel restrictions which prevented the mother from returning the child to Victoria. However, the mother argued that given the outbreak of the virus in Victoria, and the lock-down for six weeks, she opposed returning the child to a situation where her health and that of the child might be at risk, and where she had nowhere to live. She said that if the primary judge made a recovery order she would appeal it. His Honour said:[9]
HIS HONOUR: Well, you probably need to know one thing, madam: when you tell a judge during a hearing that a judge makes an order, you’re going to appeal, that’s arguably contempt of Court. I would be very wary – I know you’re not a lawyer, and you’re not supposed to understand that, but I take no notice of what you just said, okay? I have a job to do…
[THE MOTHER]: Okay.
HIS HONOUR: … and I won’t be threatened by you. Do you understand what I just said?
[THE MOTHER]: I understand…
HIS HONOUR: So, I will disregard what you just said, okay, because you’re not a lawyer. Had you been a lawyer and said that, then arguably that’s contemptuous. But I will disregard it…
[9] Transcript 9 July 2020, p.4 lines 4–19.
Clearly his Honour was wrong. Section 94AAA(1) of the Family Law Act 1975 (Cth) provides parties a right of appeal from a decree made by a judge of the Federal Circuit Court of Australia exercising original jurisdiction, and it cannot be contemptuous of the Court to indicate an intention to exercise that right.
The mother appeals these orders by Notice of Appeal (SOA 56 of 2020) filed on 9 July 2020.
16 July 2020
The matter returned to the primary judge on 16 July 2020, when having been informed that the mother had not returned the child to Victoria, his Honour ordered that the recovery order be executed.
The mother argued for an adjournment of the execution of the recovery order. She was unsuccessful, and the following exchange took place:[10]
[THE MOTHER]: Okay. Well, may I ask for an adjournment of the execution so I may make a formal application before your Honour?
HIS HONOUR: No, you can’t. You’ve had the opportunity to do that. Madam, this is nothing more or less than a transparent attempt to delay orders which provide for [the child] to spend time with her father. No, you can’t. I’m going to have the…
[THE MOTHER]: It’s not the order…
HIS HONOUR: Madam, just be quiet. I’m going to have the recovery order executed…
[10] Transcript 16 July 2020, p.6 lines 20–30.
By Notice of Appeal (SOA 59 of 2020) filed on 16 July 2020 the mother appeals the order made on 16 July 2020.
21 July 2020
On 21 July 2020 the matter again came before the primary judge on the mother’s application for a stay of the execution of the recovery order and her application that his Honour recuse himself from further hearing the matter. Both applications were dismissed.
The recusal application was supported by an affidavit filed by the mother on 16 July 2020 in which she set out the basis as to why she believed a reasonable apprehension of bias attended any further hearing before his Honour.
Both the solicitor for the father and the Independent Children’s Lawyer opposed the recusal application. The father’s solicitor in his oral submissions before the primary judge, misapprehending the basis on which such an application is brought, submitted that he did not perceive any bias on his Honour’s part.[11]
[11] Transcript 21 July 2020, p.5 lines 21–23.
The Independent Children’s Lawyer in opposing the application set out what he then considered to be the mother’s inappropriate actions in removing the child to live in Western Australia. While it is not necessarily to the point, his submissions were factually incorrect and probably legally incorrect.[12]
[12] Transcript 21 July 2020, p.5 line 27 to p.6 line 5.
The primary judge correctly set out the well accepted legal principles to be considered on such an application for recusal and dismissed the application.
By Notice of Appeal (SOA 63 of 2020) filed on 28 July 2020, the mother appeals the primary judge’s orders made on 21 July 2020.
It was agreed between the parties that within one hour or so of the primary judge’s refusal to stay the execution of the recovery order, the child was taken from her mother by the Western Australian Police Force and given into the care of the father to be flown back to Victoria. The mother travelled to Victoria the next day and, eventually, the child was handed over to her. We note that the father was in breach of his Honour’s orders by taking the child to Town F instead of remaining in City B.
It is uncontentious that on 25 July 2020, the mother and child returned to Western Australia where they were quarantined for 14 days and are now living. In the mother’s Summary of Argument filed in this appeal on 28 August 2020 she says at paragraph 59 that on 30 July 2020, the Independent Children’s Lawyer sought a further recovery order, although during the appeal hearing, the Independent Children’s Lawyer said he was not aware that this had been done.
Discussion
As will be apparent from the above background, the appeals that challenge the making of the recovery order and the primary judge’s refusal to stay its execution are futile because the orders are spent and there is no utility in the appeals (Appeal Nos. SOA 56 of 2020; SOA 59 of 2020 and so much of Appeal No. SOA 63 of 2020 that relates to the stay of the execution of the recovery order).
Thus, as was explained to the mother during the argument on the appeal, those Notices of Appeal will be dismissed.
That then leaves Appeal No. SOA 50 of 2020 by which the mother challenges the primary judge’s refusal on 9 June 2020 to make interim orders permitting her to remain living in Western Australia, Appeal No. SOA 53 of 2020 in which the mother appealed his Honour’s refusal to grant a stay of his orders, and so much of Appeal No. SOA 63 of 2020 that challenges the primary judge’s refusal to recuse himself.
It is accepted that the final hearing of the parenting dispute between the parties will be heard on 26 October 2020. All parties seemed to think that there was nothing standing in the way of that hearing proceeding. That is a relevant factor in considering the mother’s appeals against the orders of 9 June 2020 and the refusal of a stay, because even if his Honour erred in law in his consideration of that issue and the orders of 9 June 2020 are set aside, the only reasonable option available to the Full Court is to remit the interim application to be heard by another judge of the Federal Circuit Court of Australia, but that could not occur prior to the final hearing taking place, and thus we are of the view that there is no practical utility in the challenge to the interim orders of 9 June 2020, and the refusal of a stay, and the appeals will be dismissed (see Reece & Reece [2011] FamCAFC 24 at [108]–[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]).
Before we deal with the remaining challenge being to his Honour’s refusal to recuse himself, we observe that the Summaries of Argument filed by both the father and the Independent Children’s Lawyer fail to grapple with the issues raised in the appeal but, rather, assert in general terms that the appeals have no merit. Equally, the submissions on behalf of the father on the question of the primary judge’s refusal to recuse himself proceeded on a misapprehension of the relevant law and, instead, contended that the mother had not established any act of prejudgment nor any bias in the primary judge. We were therefore unassisted by those submissions.
The recusal appeal (Appeal No. SOA 63 of 2020)
Given the familiarity of the primary judge with the subject matter of the proceedings before him it is unsurprising that his ex tempore reasons for judgment for refusing to recuse himself are brief.
The primary judge in Naparus & Frankham (No. 6) [2020] FCCA 2063 (“Naparus & Frankham (No. 6)”) at [3] correctly set out the well-known test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6], namely whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided. His Honour’s articulation of the relevant legal principles was entirely correct.
In her grounds of appeal, the mother contends that there arose an apprehension of bias and prejudgment and that in refusing to recuse himself the primary judge acted upon a wrong principle of law and erred at law.
The mother contends that the primary judge misunderstood the facts surrounding her leaving Victoria for Western Australia and misdirected himself as to the effect of the then extant orders, not taking into account that the father had declined to exercise the time with the child provided to him in those orders.
While the asserted misdirection and misunderstandings formed part of the mother’s challenge to the orders of 9 June 2020, she related them to comments made by the primary judge about her conduct and her motivations. As can be seen from the extracts from his Honour’s reasons for judgment and the transcript of the discussions at the various hearings, it is clear from his Honour’s comments to and about the mother during the hearings that he considered that the mother had attempted to subvert the father’s time with the child by moving to Western Australia.
Thus the mother contends that his Honour’s comments give rise to the relevant apprehension, namely that he had prejudged the issue of her moving to Western Australia and would not bring an impartial mind to the resolution of these issues at the final hearing.
Given the primary judge’s views about the mother’s reasons for moving to Western Australia and his repeating of them on a number of occasions, there is some force in the mother’s contention that they give rise to the relevant apprehension.
The solicitor for the Independent Children’s Lawyer who appeared before the primary judge and who urged the primary judge not to recuse himself, submitted on the appeal that the comments and remarks of the primary judge from time to time in the hearing were capable of leading to the relevant apprehension. However, he submitted that when looked at over the whole of the primary judge’s dealings with the matter those remarks in that context do not amount to circumstances in which the impartial observer might form the necessary apprehension.
We agree, and while we understand the mother’s concern at the comments his Honour made about her actions without necessarily understanding that the father had declined to take up time with the child during the COVID-19 pandemic, we are not persuaded that the primary judge was in error in failing to recuse himself.
Thus that appeal was dismissed.
Costs
Although counsel for the father sought an order for costs, he had not filed a schedule of costs as required by procedural orders made by the Regional Appeal Registrar on 4 August 2020 and we declined to order costs.
Austin J
I concurred with the orders made at the conclusion of the appeal hearing to dismiss all appeals, but my reasons for the dismissal of the disqualification appeal (being part of Appeal No. SOA 63 of 2020) differ from those of Strickland and Ainslie-Wallace JJ.
The relevant appealed order made on 21 July 2020 states:
(1)That the mother’s Application in a Case for recusal be dismissed.
The findings of the primary judge which support that order were expressed in these terms (Naparus & Frankham (No. 6)):
10.To my mind, the mother’s affidavit sets out a series of her complaints against the orders that I have made. The mother is entitled to make a complaint. But her grievances are such they are, in my view, properly the subject of appeal rather than an application to recuse myself. The mother’s affidavit, on my reading, makes no submission in respect of the matters of prejudgment or other considerations or interests that might normally cause a judicial officer to recuse himself or herself.
11.Fundamentally, I am of the view that the mother, as is her right, has grievances and complaints against the various determinations that I have made. It is her entitlement to bring an appeal or appeals in respect of those decisions. But it is the function of judges to make decisions. The fact that they make decisions is not of itself a reason or a ground for a judge to recuse himself or herself. Fundamentally, the mother does not bring evidence to the Court to persuade me at all that I should recuse myself, and the application is dismissed.
There can be no doubt at all that those reasons accurately reflect the evidence brought by the mother in support of her disqualification application. Her supporting affidavit recited the history of the antecedent interim orders made in June and July 2020 and added her commentary about why she considered the orders were wrongly made. As the primary judge correctly observed, no implication of judicial bias could arise from merely making orders which were antithetical to the mother’s applications. It was the primary judge’s obligation to decide the interim parenting disputes and, since the parties wanted vastly different outcomes, the primary judge could not make orders to satisfy them both.
In relation to the three appealed orders made on 21 July 2020, the mother’s grounds of appeal simply asserted:
1.Apprehended Bias and Prejudgment
2.Acted upon a wrong principle
3.Erred at Law
(As per the original)
The pleaded grounds were not adorned by any particulars, nor was it clear to which of the three appealed orders the three grounds were addressed, so it was necessary to advert to the mother’s Summary of Argument for an explanation of why and how the first appealed order was made in error, but there was no help to be found there. Towards the end of the mother’s Summary of Argument, she poignantly conceded the lack of force in her submissions in these terms:
86.I understand that my submissions to this point are not even close to a legal argument or may not even be relevant, I have attempted to read back through his honours reasons and the transcripts but I simply get overwhelmed with emotion and any train of thought goes out the window.
(As per the original)
Respectfully, no submission following that concession in the mother’s Summary of Argument was relevant either and she made no oral submissions at the appeal hearing to amplify the contents of the Summary of Argument.
It must have been difficult for the mother to conduct the appeal without legal representation, but procedural fairness requires that she be subject to the same principles as any other litigant. Her lack of legal representation is a misfortune, not an advantage or a privilege (Gallo v Dawson (1990) 93 ALR 479 at 481).
In any application made to disqualify a judge on grounds of apprehended bias due to judicial conduct, it is critical for the applicant to do two things: first, identify precisely the conduct it is alleged might lead the judge to decide the case other than on its legal and factual merits; and secondly, articulate the logical connection between the identified conduct and the reasonably apprehended deviation from the duty of impartiality (Ebner at [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]).
Since the mother’s Summary of Argument afforded no help in identifying the asserted basis of the primary judge’s apprehended bias, the only place in which her argument could be found was in the affidavit she filed below on 16 July 2020 in support of the disqualification application. By reference to that affidavit, her assertion of the primary judge’s bias was said to arise from only two aspects of the primary judge’s conduct: first, his Honour’s alleged refusal on 9 June 2020 to entertain and decide the father’s contravention application which was pending against her; and secondly, part of what was said by his Honour in the reasons for judgment delivered when orders were made on 2 July 2020.
In respect of his Honour’s conduct of the proceedings on 9 June 2020, the mother deposed this:
8.I also add that there has been a Contravention application pending before your Honour which you have refused to hear and proceeded to make orders based on your prejudgment that I was in breach.
…
15.… We asked that your Honour proceed with all the matters (including the contravention) on the 9 June 2020 and again your Honour proceeded in favour of the father…
(As per the original)
Such evidence should be rejected as false, because it is plainly inconsistent with the mother’s lawyer’s submission to the primary judge at the time of the hearing on 9 June 2020, in these terms:
[LAWYER FOR THE MOTHER]: Your Honour, it’s my understanding that the mother is the applicant, but the father is the applicant in the contravention application.
HIS HONOUR: I am not dealing with the contravention application, am I? Do you want me to deal with the contravention application?
[LAWYER FOR THE MOTHER]: No. No, your Honour.
(Transcript 9 June 2020, p.10 line 46 to p.11 line 4).
In respect of the reasons for judgment delivered by the primary judge on 2 July 2020, the particular findings expressed in these terms by his Honour were the subject of the mother’s complaint (Naparus & Frankham (No. 4)):
6.Significantly, on 24 April 2020, the mother then represented by solicitors, had filed an Application Initiating Proceedings but also seeking interim orders inter alia that she be permitted to remain in [Western Australia] with [the child]. That was clearly unambiguously an interim application aimed at legitimising the unilateral relocation of [the child] and her prima facie breach of extant interim orders providing for time between [the child] and her father.
The mother contended the findings expressed therein were factually wrong.
The mother’s contention of apprehended bias arising from that particular paragraph of the reasons for judgment should be rejected. Foremost, the primary judge made no mistake of fact on the evidentiary material before his Honour at the hearing on 2 July 2020 but, even if his Honour did, no apprehension of bias could reasonably arise from it. Each of those propositions can be easily demonstrated.
Shortly in advance of the hearing on 9 June 2020, the mother filed an affidavit in which she deposed:
1. I am the applicant mother herein and make this affidavit in support of my Initiating Application filed on 24 April 2020.
…
33.… On the 4 April we left [Victoria] to drive to Western Australia.
34.On Sunday the 5 April I advised [the father] that I was driving to Western Australia…
…
37.… I seek permission of the court to allow us to remain here [in Western Australia].
(As per the original)
On 9 June 2020, the primary judge ordered, among other things, that the interim parenting orders made in April 2018 would continue to apply with full force and effect, subject to observance of State border closures due to the COVID-19 pandemic, and required the mother to return with the child from Western Australia to Victoria as soon as the government imposed travel restrictions allowed it (Frankham & Naparus (No. 3)).
The next hearing on 2 July 2020 concerned the parties’ competing applications to stay or enforce the interim parenting orders made on 9 June 2020. In support of her stay application, the mother deposed:
…
2.I have filed an appeal against the interim order, a stay is necessary in order to avoid the appeal being rendered nugatory.
3.I have applied for final orders to be permitted to remain with the child in [Western Australia], the matter was listed for final hearing on the 9 June 2020 but instead interim orders were made for the return of the child to [Victoria] pending final hearing on 26 October 2020.
4.If my final order application is successful and I would be permitted to relocate to [Western Australia] the disruption to [the child’s] current living arrangement would have been unnecessary.
5.An independent psychiatric report was conducted and available before the court which stated that my mental health had improved since residing in [Western Australia] and there is a risk of relapse should I be ordered to return to [Victoria], I don’t believe this was given appropriate consideration and weight.
6.The family report writer’s recommendations are not in [the child’s] best interest[s], the report is inaccurate, misleading and bias. I believe the report writer is placing the safety of families at risk by making recommendations unsupported by evidence and based on his personal opinions and assumptions.
(As per the original)
As can be seen, the evidence voluntarily placed by the mother before the primary judge up to and including 2 July 2020 revealed her admission of unilateral relocation with the child to Western Australia on 4 April 2020 and her subsequent filing of an Initiating Application, several weeks later on 24 April 2020, seeking both interim and final orders permitting her to remain living there permanently. Little wonder then that the primary judge inferred the Initiating Application was “clearly unambiguously an interim application aimed at legitimising the unilateral relocation of [the child]”.
It was not until the mother filed her affidavit in support of the application for the primary judge’s disqualification, several weeks later, that she deposed to the circumstances in which her Initiating Application came to be filed after her unilateral relocation with the child to Western Australia, in these terms:
9.Your Honour also determined that my Initiating Application for interim and final orders was ‘clearly unambiguous an interim application aimed at legitimising the unilateral relocation….’ Because the application was filed on 24 April 2020.
10.This is incorrect and prejudged again because the application was made and signed on the 18 March 2020, it was filed shortly after but due to a mistake by the court it was listed before a different judge. The mistake then took until 24 April to be corrected again by the court registry.
(As per the original)
Even if that evidence is true, it was unknown to the primary judge at the hearing on 2 July 2020. Its subsequent provision does not retrospectively invalidate the finding made by the primary judge in the absence of such evidence. The plurality considers it would have been obvious to the primary judge at the time that the mother’s affidavit filed on 24 April 2020 was actually sworn on 18 March 2020, but I do not consider his Honour would or should have paid any heed to the date upon which the mother’s affidavit was sworn unless it was specifically drawn to attention as being important, and it was not. In any event, the mother’s affidavit filed on 24 April 2020 was overtaken by the affidavit she filed on 7 June 2020, referred to at [74] above.
Furthermore, the evidence available to the primary judge as at 2 July 2020 vindicated the finding that the mother, by her unilateral relocation with the child to Western Australia, was in “prima facie breach of extant interim orders providing for time between [the child] and her father”. The mother’s evidence in the following terms, adduced in support of her later disqualification application, should be rejected as misconceived:
5.In your reasons of 02 July 2020 at paragraph 6 your Honour determines that I was in prima facie breach of extant interim orders, which I obviously was not.
The primary judge was aware of the mother’s evidence that, in March 2020, the father had voluntarily suspended the child’s visits with him, on a temporary basis, due to the COVID-19 pandemic (Frankham & Naparus (No. 3) at [11] and [40]). But the father’s decision to do so did not then enable the mother to do as she pleased with the child, as she seems to assume. The father was free to revoke his decision at any time, thereby reviving the operation of the existing interim orders requiring the child to spend time with him in Victoria. Had he done so, the mother could not possibly have complied with the orders when living with the child in Western Australia, as her lawyer admitted during the hearing on 9 June 2020. Besides, both parties still retained parental responsibility for the child. The mother was not at liberty to relocate the child to the other side of the country without consulting the father, because he had just as much say in any decision about changes in the child’s living arrangements which would make it significantly more difficult for the child to spend time with him. The mother’s relocation with the child to Western Australia without his permission was an apparent breach of the existing orders, or a “prima facie breach” as the primary judge described it, even if the mother honestly did not think so.
Since the subject findings made by the primary judge at [6] in the reasons for judgment delivered on 2 July 2020 were open on the evidence then adduced, there was no mistake of fact and, hence, no argument of “apprehended bias” or “prejudgment” was or is available to the mother on that basis.
However, even if the subject findings had not been open to the primary judge, a mere mistake of fact did not give rise to an apprehension of judicial bias because any “fair-minded lay observer” who is aware of the judicial duty of impartiality and who is not unduly sensitive or suspicious (Ebner at [8]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232]) would not have reasonably apprehended the prospect of the judge’s bias. Instead, the hypothetical observer would have realised a judge who made the mistaken finding of fact on untested evidence in an interim hearing would correct the mistake at final trial once alerted to the mistake.
Nothing done by the primary judge in the proceedings on 9 June 2020 and nothing said by the primary judge in the reasons for judgment delivered on 2 July 2020 affords any grounds to reasonably suspect his Honour’s deviation from the judicial duty of impartiality at the upcoming trial. When the primary judge was asked to disqualify himself on 21 July 2020, there was no rational basis to do so. His Honour was correct to point out that the mother’s evidence adduced on that occasion was only directed to why she believed the preceding interim orders were wrongly made, but did not demonstrate a reasonable basis for his Honour’s disqualification. The mother’s lofty allegations in the affidavit she filed in support of the disqualification application, that the primary judge’s “objectivity has been clouded” and his Honour had “lost sight of the primary consideration being the best interests of the child”, should be rejected as being no more than her honest, but objectively unproven, opinions. The principles of apprehended bias can only be engaged objectively; not subjectively.
No error was demonstrated in the primary judge’s decision to refuse the mother’s disqualification application on 21 July 2020 and so the disqualification appeal was dismissed, enabling the primary judge to hear the trial between the parties in October 2020. As the plurality explain, the remaining appeals were also dismissed because their separate determination would have been futile.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Austin JJ) delivered on 25 September 2020.
Associate:
Date: 25 September 2020
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